State v. Damien L. Wilson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 15, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP515 Cir. Ct. No. 2005CF86

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAMIEN L. WILSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Jefferson County:
ROBERT F. DEHRING, Judge. Affirmed.

Before Blanchard, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Damien L. Wilson appeals a circuit court order that
denied Wilson’s postconviction motion for a new trial under WIS. STAT. § 974.06
No. 2020AP515

(2019-20).1 Wilson contends that he is entitled to a new trial based on newly
discovered evidence. For the reasons set forth in this opinion, we conclude that
the circuit court properly exercised its discretion by denying the motion.
Accordingly, we affirm.

¶2 In March 2005, Wilson was charged with second-degree child sexual
assault. At trial, the six-year-old victim, A.B.,2 testified that Wilson had touched
her between her legs, inside her underwear, four times during a night she stayed
over at Wilson’s apartment. Wilson was convicted following trial.

¶3 In September 2014, Wilson filed a motion for postconviction relief
under WIS. STAT. § 974.06. He argued that he was entitled to a new trial based on
the following newly discovered evidence: (1) A.B. had recanted her accusation
against Wilson; and (2) A.B. had falsely accused a bus driver of a similar sexual
assault. The circuit court granted Wilson a new trial based on the newly
discovered impeachment evidence of the false accusation against the bus driver.
Wilson was convicted following his second trial.

¶4 In January 2019, Wilson filed the WIS. STAT. § 974.06 motion
underlying this appeal. Wilson argued that he is entitled to a new trial based on
the newly discovered evidence that, when A.B. was in grade school, she told her
childhood friend, C.D., that A.B. did not know who had touched her because her
assailant’s head was covered. Wilson submitted a supporting affidavit from C.D.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

To protect the identity of the victim, we refer to her as “A.B.” and her childhood friend
2

as “C.D.” See WIS. STAT. RULES 809.19(1)(g) and 809.86.

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No. 2020AP515

averring that A.B. “stated that she was not sure who touched her due to the fact the
individual had something over their head.”

¶5 The circuit court held an evidentiary hearing on Wilson’s motion for
a new trial based on newly discovered evidence. At the hearing, C.D. testified
that, when C.D. was ten years old and A.B. was nine years old, A.B. told C.D. that
A.B. did not know who sexually assaulted her because A.B. was blindfolded at the
time of the sexual assault.

¶6 The State cross-examined C.D. as to the inconsistency between her
affidavit, in which she averred that A.B. told her that her assailant’s head was
covered, and C.D.’s in-court testimony, which was that A.B. said that A.B. was
blindfolded. On re-direct, defense counsel sought to clarify C.D.’s testimony, and
C.D. stated: “This was so long ago that -- I know that something has been said
about a blindfold. I know for a fact that something has been said about a
blindfold, whether it was his head or her head, somebody was blindfolded.” C.D.
continued: “I can’t quite say. It was so long ago. It was fifth grade. I’m 22.”

¶7 The circuit court determined that there is not a reasonable
probability of a different result if C.D. testified at a new trial. It cited the
following as “problems” with C.D.’s averments and in-court testimony: C.D. was
Wilson’s pen pal; C.D. could be impeached with her criminal record; the
conversation between C.D. and A.B. was from twelve years prior; C.D.’s
motivations could be questioned based on her stated animosity toward A.B.; and
C.D. was unable to recall whether A.B. said that her assailant’s head or her own
head was covered. The court therefore denied Wilson’s motion for a new trial.
Wilson appeals.

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¶8 Wilson contends that he is entitled to a new trial based on the newly
discovered evidence, premised on the proposition that C.D. would testify at a new
trial that A.B. told C.D. that A.B. could not identify who sexually assaulted her.
We disagree.

¶9 “The decision to grant or deny a motion for a new trial based on
newly discovered evidence is committed to the circuit court’s discretion.” State v.
Avery, 2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60. A defendant seeking a
new trial based on newly discovered evidence must prove: “‘(1) the evidence was
discovered after conviction; (2) the defendant was not negligent in seeking the
evidence; (3) the evidence is material to an issue in the case; and (4) the evidence
is not merely cumulative.’” State v. Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750
N.W.2d 42 (quoted source omitted). If all four criteria are met, the court must
determine whether there is a reasonable probability of a different result with the
new evidence. See Avery, 345 Wis. 2d 407, ¶25.

¶10 The parties first dispute whether Wilson has established that the
evidence was not merely cumulative to other evidence presented at trial. We will
assume, without deciding, that Wilson has met the initial four criteria for a newly
discovered evidence claim.3 With that assumption, we turn to the question of
whether there exists a reasonable probability of a different result with the newly
discovered evidence.

¶11 Wilson argues that there is a reasonable probability of a different
outcome at a new trial if C.D. were to testify that A.B. told C.D. that she could not

3
It is undisputed by the parties that the other three initial criteria have been met; they
dispute only whether C.D.’s testimony is cumulative to other impeachment evidence at trial.

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identify the person who sexually assaulted her. He argues that the circuit court
erred by considering only the problems with C.D.’s testimony, rather than
considering the effect that this testimony would have on a jury. He contends that
C.D.’s averments and in-court testimony to the effect that A.B. told her that A.B.
was unable to see or identify her assailant—because either her assailant’s head or
her eyes were covered—may have swayed the jury to find a reasonable doubt. See
Avery, 345 Wis. 2d 407, ¶28 (“A reasonable doubt as to a defendant’s guilt has
been found to exist when the reliability of a witness critical to the State’s case is
completely called into question by newly discovered evidence ….”). He contends
that the circuit court did not find C.D.’s testimony incredible, and that the weight
of that testimony is therefore a matter for the jury. See id., ¶25 (“While the court
must consider the new evidence as well as the evidence presented at trial, the court
is not to base its decision solely on the credibility of the newly discovered
evidence, unless it finds the new evidence to be incredible.”). He points out that a
circuit court may not deny a newly discovered evidence claim based on the court’s
own determination that some witnesses are more credible than others, but instead
the issue is whether a jury, itself weighing the relative credibility of multiple
witness, could have a reasonable doubt as to guilt. See State v. McCallum, 208
Wis. 2d 463, 474-76, 561 N.W.2d 707 (1997); State v. Edmunds, 2008 WI App
33, ¶¶17-19, 308 Wis. 2d 374, 746 N.W.2d 590. We now discuss McCallum and
Edmunds in more detail.

¶12 In McCallum, 208 Wis. 2d at 468, 474-75, our supreme court
concluded that the circuit court erred by denying McCallum’s motion to withdraw
his Alford4 plea based on the circuit court’s determination that the newly
4
North Carolina v. Alford, 400 U.S. 25 (1970).

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No. 2020AP515

discovered evidence—the victim’s recantation—was less credible than the
victim’s original accusation. Our supreme court explained: “A reasonable jury
finding the recantation less credible than the original accusation could,
nonetheless, have a reasonable doubt as to a defendant’s guilt or innocence.” Id.
at 474-75. The court also stated, however: “A finding that the recantation is
incredible necessarily leads to the conclusion that the recantation would not lead to
a reasonable doubt in the minds of the jury.” Id. at 475.

¶13 In Edmunds, 308 Wis. 2d 374, ¶18, we explained that the circuit
court erred by denying Edmunds’s motion for a new trial based on its credibility
determinations because “the circuit court expressly found that Edmunds’s new
evidence and the State’s new evidence were both credible. The court then
weighed the evidence and concluded that the State’s evidence was stronger.” We
explained that, under McCallum,

[a]fter determining that both parties presented credible
evidence, it was not the court’s role to weigh the evidence.
Instead, once the circuit court found that Edmunds’s newly
discovered … evidence was credible, it was required to
determine whether there was a reasonable probability that a
jury, hearing all the … evidence, would have a reasonable
doubt as to Edmunds’s guilt.

Id. We explained that “a jury could have a reasonable doubt as to a defendant’s
guilt even if the State’s evidence is stronger.” Id.

¶14 Here, the circuit court explained that, given the “problems” it found
with C.D.’s testimony (summarized above), there was not “a reasonable
probability of a different result[.]” In other words, “in looking at both the old
evidence and this additional evidence,” there was not a reasonable probability that

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the jury, “given just this additional evidence alone,” would have “a reasonable
doubt [about] the Defendant’s guilt.”

¶15 Thus, the circuit court did not find C.D.’s testimony to be credible
and then weigh it against competing credible evidence, as was determined to be
error in McCallum and Edmunds. Rather, the court here found numerous
“problems” with C.D.’s testimony and explained that, based on those findings, the
court determined that there is not a reasonable probability of a different result at a
new trial with that testimony. We understand the court’s reasoning as including
the implicit finding that C.D.’s testimony, to the extent that she claimed to have a
reliable memory that A.B. told C.D. that she could not identify the assailant, was
incredible.5 See State v. Echols, 175 Wis. 2d 653, 672, 499 N.W.2d 631 (1993)
(implicit credibility determinations are sufficient if supported by the record). A
circuit court’s finding that a new witness is not credible “is the equivalent of
finding that there is no reasonable probability of a different outcome on retrial.”
State v. Carnemolla, 229 Wis. 2d 648, 661, 600 N.W.2d 236 (Ct. App. 1999).

¶16 Wilson argues, however, that the circuit court erred in its
determination that there is not a reasonable probability of a different result, based
on the court’s credibility determination. He asserts reasons that the court could
have deemed C.D. credible. We are not persuaded. “The circuit court had the
opportunity to view [C.D.’s] demeanor on the stand, weigh evidence of bias or

5
Wilson does not contend that the circuit court had to explicitly find that C.D.’s
testimony was incredible as a matter of law to rely on a credibility determination alone, and
indeed, we have already rejected such an argument. In State v. Carnemolla, 229 Wis. 2d 648,
659, 600 N.W.2d 236 (Ct. App. 1999), we rejected the argument “that, to warrant denial of a
new-trial motion, the newly discovered evidence must be ‘incredible as a matter of law,’ as
opposed to not credible or not believable.”

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No. 2020AP515

motive to testify falsely, consider past convictions and other impeaching evidence
and look for any other indicia of reliability or the lack thereof.” See id.
Accordingly, the circuit court was “in the best position to evaluate the credibility
of [her] testimony.” See id. We discern no basis to disturb the circuit court’s
finding that C.D.’s testimony was not credible to the extent that she took the
position that A.B. told C.D. that she could not identify her assailant. See State v.
Thiel, 2003 WI 111, ¶23, 264 Wis. 2d 571, 665 N.W.2d 305 (we will not disturb a
circuit court’s credibility assessments unless they are clearly erroneous). The
circuit court considered factors relevant to C.D.’s credibility, including that C.D.
expressly testified that she was unable to recall the substance of her conversation
with A.B. as to whose head or eyes were allegedly covered during the sexual
assault and acknowledged that she had no reliable memory of the substance of the
alleged conversation. Her admitted lack of reliable memories carried all the more
weight in light of the material inconsistencies between her affidavit and her in-
court testimony. We are not persuaded that the court erroneously exercised its
discretion by finding that C.D.’s assertion about A.B.’s alleged statement to her
was not credible, and in relying on that finding to determine that there is not a
reasonable probability of a different result at a new trial. Accordingly, we affirm
the denial of Wilson’s postconviction motion.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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